Constitutionality of Death Penalty To Be Debated in Unprecedented Texas Court Hearing

December 07, 2010 09:00 AM

by
findingDulcinea Staff

A Texas district court is hearing arguments that the state’s death penalty is unconstitutional on the basis that there is a high probability of wrongful executions. A dozen Texas men have been exonerated after spending time on death row, and two men have already been executed due in part to discredited evidence.

The hearing takes place as part of the criminal trial of John Edward Green, who stands accused on murder. Green’s attorney asked that State District Judge Kevin Fine declare the death penalty unconstitutional, a routine request in Texas capital cases that had declined in all prior cases. In March 2010, Fine declared the death penalty unconstitutional before rescinding his ruling a week later and calling for the matter to be decided in a hearing.

The hearing began Monday and is expected to take about two weeks. The defense, which includes national anti-death penalty advocates such as Barry Scheck of the Innocence Project, will argue that there are flaws in the capital punishment system and that two innocent men have been executed. The prosecution says that out of protest it will refuse to present any arguments.

Texas is well known for having the most active capital punishment system in the U.S. Since 1976, when the Supreme Court made rulings that reinstated capital punishment four years after it was declared unconstitutional, Texas has killed 464 inmates, accounting for more than a third of the 1,233 inmates killed nationwide.

There has yet to be an executed man who has been clearly shown to be innocent, but there are several cases where it is a possibility. The two most prominent cases are those of Claude Jones and Cameron Todd Willingham.

A DNA test in November determined that the hair strand belonged not to Jones, but to the victim. While the test does not prove that Jones, who had previously been convicted of a separate murder, was innocent (the murder was almost certainly committed by either Jones or his companion), it does reveal that he was convicted primarily on a piece of false evidence.

Willingham was convicted of starting a fire in his home that killed his three daughters and executed in 2004. Several reports have condemned the investigation that led to Willingham’s conviction, raising the possibility that the state may have executed an innocent man.

Under the Texas capital punishment system, the inmates’ final appeals are made to the State Board of Pardons and Paroles and the governor. However, the board and the governor rarely take action; in the more than 200 executions since January 2001, just two commutations have been made outside of 30 ordered by the Supreme Court.

According to an estimate made last year by the Houston Chronicle, the board, which does not meet in person to discuss cases, has refused to review more than 50 cases. Grann cites a Texas appellate judge who calls the clemency system a “legal fiction.”

Ryan’s decision came nine years after the famous dissent by Supreme Court Justice Harry Blackmun, in the 1994 case Callins v. Callins, where he wrote about what he perceived to be inherent flaws in the death penalty:

“Twenty years have passed since this court declared that the death penalty must be imposed fairly and with reasonable consistency or not at all, and despite the effort of the states and courts to devise legal formulas and procedural rules to meet this...challenge, the death penalty remains fraught with arbitrariness, discrimination...and mistake.”

Blackmun’s was met with a stinging retort from Justice Antonin Scalia that culminated with a visceral example of what he perceived to be capital punishment’s fairness:

“The death-by-injection which Justice Blackmun describes looks pretty desirable… next to some of the other cases currently before us, which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!”

In 2004, the New York Court of Appeals declared the state’s capital punishment law unconstitutional, based on “deadlock” provisions in the law. The same court upheld its decision in a subsequent case in 2007. Although the defect could be remedied in a new law, the New York State legislature has not seriously debated a re-enactment of a death penalty law.

In March 2009, New Mexico officially abolished the death penalty. Gov. Bill Richardson, a former supporter of capital punishment, signed the bill into law and referenced evidence that the state had previously executed convicts who were innocent. New Mexico became the 15th state to formally abolish the death penalty, but only the second since 1976.